23 MAY 2002
I. It is submitted that in order to present the Appellants' case adequately, it is necessary to refer by way of overview, to the way in which the issues between the parties have arisen.
2. As indicated in the Summary:
a. the subject property is and was at all times material a residential property occupied by a single dwelling house and owned by the Appellants;
b. the Appellants purchased the subject property some 18 years prior to registration.
3. Although not discussed in detail in the Summary, it is unlikely to be disputed, that at the time of the hearing before Her Honour:
a. the physical condition of the 1952 extension had been very poor for a number of years;
b. most of its original features had been destroyed or removed;
c. it was uninhabitable;
d. on any test, its future was uncertain.
4. All of these aspects were considered and discussed in detail, in the Conservation Management Plan [AB4 C443] hereinafter referred to as "the CMP", a document tendered in evidence on behalf of the Respondent.
5. It was not in issue that the removal of the roof did not cause or materially contribute to its poor condition.
6. Nor was it in issue that when the roof was removed, most of its original features were worn out, or had been replaced with materials which were significantly different from the originals.
7. It is submitted that it was open on the evidence, to infer that if the 1952 extension were to be retained, there would be considerable force in any submission that the roof would have to be completely re-built, the critical question being whether and to what extent it would be practicable to build it with the same materials used originally.
8. This aspect was dealt with in detail in the CMP [AB4 C519 et seq,].
9. It was not in issue that since 1999, the Appellants had been assiduously seeking a permit for an "overall redevelopment strategy" for the subject property, involving the future maintenance of the 1947 building, the demolition of the 1952 extension, and the construction of new accommodation at the front of the subject property, and that:
a. this procedure was both appropriate and logical, having regard to the Act;
b. the hearing before the Heritage Council of an appeal in relation to a permit application for an overall redevelopment strategy, including demolition of the 1952 extension, was fixed for 23 May 2001;
c. the decision of the Heritage Council, would be final, subject only to the intervention of the Minister, pursuant to Section 78 of the Act.
10. The appropriateness and logic of that procedure was discussed and recommended in the CMP [AB4 C527].
11. Under Section 73( 1 )(a) and (b) of the Act, the matters to be considered in determining a permit application, include (it is submitted) a "weighing" exercise, in which not only heritage interests, but the reasonable or economic use of the heritage place, must be taken into account.
12. Accordingly, it is submitted that it was a discretionary consideration of considerable weight in this proceeding, that on the evidence relating to the physical condition of the 1952 extension, and having regard to the matters to be considered under Section 73( 1 )(a) and (b) of the Act, all of which were considered and discussed in the CMP , there was a real possibility that no point would be served by ordering the replacement of the roof, because a permit might shortly be issued for:
a. the demolition of the 1952 extension;
b. its incorporation in some form or other, into an overall redevelopment strategy.
13. It is submitted, that there was at least some evidence suggesting
that the real reason why the Respondent had issued this proceeding, was
that in his opinion the Appellants, by causing the roof to be removed,
had incurred an obligation to replace it, which he required the Appellants
to fulfill, before serious consideration would be given to an overall
redevelopment strategy, namely:
a. evidence suggesting that the Respondent had declined to offer any advice to the Appellants with regard to the nature of an overall redevelopment strategy which would be likely to be permitted;
b. the following statement, repeated in substance in consecutive permit refusals: "Achievement of the brief in its present form is not supported ahead of the retention and reinstatement of the 1952 extension.";
c. the suggestion, repeated in officer reports relating to permit applications, that a Conservation Management Plan was needed, before proper or sufficient consideration could be given to such applications.
14. Her Honour, at paragraphs 56 and 57 of her reasons, [AB6 E4] declined to take such matters into account.
15. The Appellants must refer to the chronology of events set out in the affidavits sworn by the Respondent, to meet any suggestion, that this proceeding became necessary, either because:
a. the Appellants were to blame for the fact that as at the commencement of the hearing before Her Honour, they had not already obtained a permit to demolish the 1952 extension; or
b. that in some other way, they were unfairly or unreasonably seeking to avoid their obligations under the Act.
16. It was not in issue between the parties that the physical condition of the 1952 extension was not deteriorating so rapidly, that there was no time to wait for the result of an appeal to the Heritage Council.
17. In the CMP , the issue of demolition of the 1952 extension was considered on the basis that as the building was unstable, it would be reasonable to require it to be stabilized, if it were to be retained as a useable part of the house, thus adding the cost and risks of stabilizing procedures to the list of relevant considerations.
18. Her Honour [AB6 E23] concluded that although the future of the slab was difficult to predict, on the balance of probabilities reinstatement of the roof would not be futile, without, apparently, considering whether it was reasonable to expect the Appellants to retain it in an unstable condition. She does not appear to have considered whether it would be reasonable to use it for residential purposes.
The basis of Her Honour's decision
19. At paragraph 21, in the course of identifying the nature of the discretionary considerations which should be taken into account, Her Honour adopted a passage from the judgment of Dixon CJ in Klein v Domus, in which reference was made to the "the scope and purpose of the provision, and its real object" but "within that very general statement of the purpose of the enactment", the "real object of the legislature", to "leave scope ...to give effect to her view of the justice of the case" .Her Honour referred to another passage, from the judgment of Kitto J. in R v Anderson Ex p Ipec-Air, in which His Honour adopted a passage from Sharp v Wakefield, describing a discretion allowed by statute to the holder of an office as intended to be exercised "according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself'.
20. At paragraph 43, Her Honour adopted a passage from the judgment of Dixon J in Swan Hill v Bradbury in which the "absence of any definite rule for the exercise of the discretion" was explained by reference to "infinite variety of facts which may present themselves" in connection with statutes which attempt to "reconcile the exercise and enjoyment of proprietary and other private rights with the conflicting considerations which are found to attend the pursuit of the common good".
21. Her Honour based her decision on the following conclusions in relation to considerations of relevance to the common good:
a. (paragraph 31) that as Mr. Clerehan had proposed the
items of work relating to the roof and the partition, she could assume
that those items would constitute a sufficient restoration of the 1952
extension to preserve its status as part of a heritage place,
b. (paragraph 42) that although the future of the slab is difficult to
predict, the items of work relating to the roof would not be futile, by
reason of the instability of the slab.
22. Her Honour then endeavoured to assemble a collection of conclusions in relation to the enjoyment of private rights. She identified the following matters, but did not conclude that they should be given any or much weight:
a. (paragraphs 47,49, and 50) that various permit applications were made
b. (paragraph 48) that no action was taken against the Appellants for failing to comply with a Repair Order
c. (paragraph 55) that there was insufficient evidence to warrant the conclusion that the Appellants could not afford to have the items of work carried out
d. (paragraphs 57 and 60) that the CMP had no formal status, and no overall redevelopment strategy had been put before her.
23. At paragraph 61 Her Honour confirmed that she regarded the following categories of considerations as relevant:
a. the purposes of the Act~
b. the future of the concrete slab;
c. the position of the defendants as owners of the property.
Criticism of Her Honour's analysis
- The position of the Appellants
24. It will be convenient to deal first with category ( c ), referred
to above, namely, the position of the defendants, or as they now are,
the Appellants.
25. It is submitted on the evidence, that the following considerations referred to in Grounds 8 and 9, were relevant to the exercise of the discretion and were ignored:
a. that at all times the Appellants were assiduously endeavouring to obtain a permit for an overall redevelopment, and acting reasonably in so doing;
b. that the conduct of the Respondent, in declining to assist them, and declining to consider demolition until they replaced the roof, forced them to make more than pone permit application, and to adopt a trial and error basis;
c. that the Respondent declined to advise or assist them, notwithstanding the publication of the CMP, in the circumstances set out in the consent orders;
d. that the Appellants were not responsible for any delay, in the circumstances;
e. that in determining the various applications, the Respondent did not seriously consider or take into account the issue referred to above at paragraph 10(h) hereof;
f. that having regard to the attitude of the Respondent to their applications for a permit to demolish the 1952 extension, the Appellants acted perfectly reasonably in appealing to the Heritage Council;
g. that in all the circumstances Her Honour should have refused an order at least until the decision of the Heritage Council on the appeal was given.
26. Turning to the slab, it is submitted on the evidence that the following discretionary considerations referred to in Grounds 8 and 9, relating to the slab, were ignored by Her Honour:
a. that as the 1952 extension was uninhabitable, the carrying out of the items of work relating to the roof, would definitely be futile, so far as the Appellants ' interests were concerned, and a waste of money;
b. that having regard to the unpredictability of the future stability of the slab, on the balance of probabilities it could not be said that reinstatement of the roof would !!Q! be futile.
27. It is also submitted that Her Honour incorrectly gave weight to the fact that she could not find or conclude, that reinstatement of the roof would be futile.
28. Turning to the purpose of the Act, it is submitted on the evidence that the following discretionary considerations referred to in Grounds 8 and 9 were not taken into account:
a. that the items of work relating to the roof did not result in reinstatement or restoration of the original roof, nor did they support or contribute in any positive sense, to the heritage value of the 1952 extension;
b. that the provisions of Section 168 do not require anything other than reinstatement of the roof to the condition it was in prior to contravention.
29. It is also submitted that Her Honour incorrectly gave
weight:
a. to an assumption which, further, was not justified on the evidence,
that Mr. Clerehan was of the view that any of the items of work would
constitute a sufficient restoration of the 1952 extension, to preserve
its status as part of a heritage place;
b. to her finding that the purpose of the Act would be advanced by the
making of the order for the carrying out of the works listed in paragraph
19 of her reasons.
31. Grounds 1 to 7 inclusive, seek to criticize the relevance and weight given by Her Honour" to the discretionary considerations selected by her.
32. Grounds 8 and 9" seek to demonstrate the manner in which" it is submitted" Her Honour should have exercised her discretion.
33. The grounds are relatively detailed" and for the purposes of this Outline" it may be sufficient simply to set out the chronological detail" referred to in the grounds, which is for the most part taken from the affidavits of the Respondent" and not in dispute.
34. The critical chronological events were as follows:
| 1973 | a. The Appellants purchased and occupied the subject property in 1973. |
| 1991 | b. It was not registered until 1991" by which time it had been substantially altered and extended, and was in poor condition. |
| 1999 | c. It is common ground that in 1999, the Appellants wished to upgrade the living conditions and re-occupy the subject property , which had been either uninhabited or let for several years. |
| 15 July 1999 |
d. On 15 July 1999, the Appellants applied for a permit. The Appellants had been advised by their consultants that the .952 extension was unstable; accordingly, as part of their permit application, they informed the Respondent in detail of this" and proposed that the 1952 extension be demolished" on the ground that the physical condition of the building was so poor" that:
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| e. The Respondent refused the application. The Heritage Council, on appeal, confirmed the Respondent's determination. In their reasons however, neither demonstrated that they had seriously considered or decided the issues raised by the above ground. The officer report relied on by the Respondent, (Exhibit RT 12, AB3 C 49) and Ground 4 of the Respondent's grounds of refusal (Exhibit RT 16, AB3, C66) seemed to indicate that the Respondent would not even consider demolition, "... ahead of the retention and reinstatement of the 1952 extension " or, possibly, the preparation of a CMP. | |
| 25 July 2000 | f. On 25 July 2000, the Appellants made 2 fresh applications for a permit, one proposing demolition of the 1952 extension, the other proposing retention (Exhibit RT 36, AB3 C221 ). |
| 25 July 2000 | g. The Respondent commenced this proceeding on the same day. |
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h. The Respondent determined both applications (Exhibit RT 54, AB3 C284) in a manner which the Appellants found unsatisfactory.
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| i. The Appellants appealed against both determinations, to the Heritage Council. | |
| 12 Feb 2001 | j. On 12 February 2001, before the hearing of the appeals, this proceeding came on for hearing before Her Honour for the first time, together with a proceeding numbered 5090/2000, issued by the Appellants against the Respondent. |
| k. Pursuant to orders made by consent (AB6 F 1 to F 4, inclusive) both proceedings were adjourned, on terms pursuant to which the Respondent would have a CMP (Exhibit RB 1 AB 4 C44 3 et seq. ) for the subject land prepared, and, pursuant to paragraph 3 of the order in this proceeding, upon compliance with the recommendations in the CMP , both proceedings might be discontinued. | |
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l. The recommendation in the CMP , with regard to the 1952 extension was set out at page 75 (AB4 C527). It appears to have proceeded on the basis summarised in the Introduction, at page ii (volume 4, page C450) as follows:
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m. The recommendation (AB4, C527) was as follows:
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| n. The Respondent declined to initiate any steps with regard to the recommendation. | |
| o. The Appellants, endeavouring to comply with the recommendation, prepared their own overall redevelopment strategy , which they forwarded to the Respondent as a permit application. They discontinued proceeding number 090/2000, and withdrew their current appeals. | |
| p. The Respondent however, refused to discontinue this proceeding. | |
| 29 Jan 2001 | q. On 29 January 2001, he refused the application. |
| r. On 15 February 2001, the Appellants appealed to the Heritage Council, and requested an expedited hearing, having regard to the fact that this proceeding had been re-listed for hearing on 5 March 2001. | |
| s. In response, the Heritage Council fixed the hearing for 23 May 2001. | |
| 5 March 2001 | t. On 5 March 2001, the hearing of this proceeding commenced before Her Honour, the Respondent having successfully opposed an application for an adjournment on the ground that notwithstanding the appeal, the hearing should not be further delayed |
23 MAY 2002.
C.W.PORTER
OWEN DIXON CHAMBERS WEST.
Craig Porter - Barrister
Room 1114
Owen Dixon Chambers West
525 Lonsdale Street
Melbourne 3000
Telephone: (03) 92257457
Fax: (03) 9225 7955
Email: craigporter@vicbar.com.au